MINUTES

WARRICK COUNTY AREA BOARD OF ZONING APPEALS

Regular meeting held in the Commissioners Meeting Room

Third Floor, Court House

Boonville, Indiana

October 27, 2004, - 6:00 P.M.

MEMBERS PRESENT: Larry Willis, Chairman, Don Mottley, Vice-Chairman; William McCune, Richard Medcalf, John Peninger, and Dennis Taylor.

Also present were: Sherri Phillips, Executive Director and Secretary; Leslie Shively, Attorney; Susan Weigman, staff.

MEMBERS ABSENT: Duane Erwin

MINUTES:

A motion was made by Don Mottley to approve the minutes of the last regular meeting of the Area Board of Zoning Appeals held September 22, 2004, as circulated. The motion was seconded by William McCune and unanimously carried.

The Chairman explained the Rules of Procedure to the audience.

SPECIAL EXCEPTIONS

BZA-SE-04-27 – Applicant: Bell South Mobility d/b/a Cingular Wireless c/o Pike Legal Group PLLC by David Pike, Attorney Owners: Revocable Trust of Kenneth Ubelhor by Kenneth Ubelhor, Trustee.

Premises – Property located 1300’ E of Bell Rd (W 850) approximately 900’ N of the intersection formed by Bell Rd and SR 66. Ohio Twp. Proposed Lot 13 in High Pointe Centre North Sec 2. 8190 High Pointe Dr.

Nature of Case – Applicant request a Special Exception from the district requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of a 150’ monopole with a 10’ lightning arrestor and 3 equipment shelters in a “C-4” General Commercial Zoning District. Advertised in the Boonville Standard on July 15, 2004. – Continued from July 28^th meeting and from the September 22^nd

Present were David Pike, attorney and Kenneth Ubelhor, owner.

The Chairman called for a staff report.

Ms. Phillips stated this application was continued from the last meeting so the Board members could review the documents that were presented at the meeting and it was also continued due to there only being four members present. She stated a set of the minutes of the meeting were supplied to all Board members along with a packet of all the new information supplied by both the applicant and remonstrators. She stated a letter from Catherine Lappe has also been submitted and included in the packet. She stated she has also put together Mr. Ubelhor's proposed subdivisions, so if there are any references to any lots in his proposed subdivision, then they have that. She stated the subdivisions are not on the computer yet because they have not been secondary platted. She stated all the Board members did come to the office to get their packets and have had time to look over everything. She stated she is not going to go through everything that has been given to them and the members that were not here at the last meeting did receive a copy of very detailed minutes so there would not be any questions.

The Chairman asked if the applicant had anything further to add to the staff report.

Attorney Pike stated before he starts his presentation, he has something that might be a bit of a surprise. He stated he would like to speak procedurally if he could.

The Chairman stated that would be fine.

Attorney Pike stated at the last public meeting representatives of the neighborhood association and their leadership, indicated on the record that they would be prepared to support, as an alternative site for this tower, a relocation to either lot 7 or lot 8.

Discussion was held on where lots 7 and 8 are located.

Kenneth Ubelhor showed on the screen were the proposed new location would be in reference to the existing storage buildings.

Attorney Pike stated from a planning perspective they do not believe this is a superior site, it will require the construction of a tower that is approximately 20’-25’ taller based on a drop in elevation. He stated this company takes its role of trying to work with communities seriously because these folks that are here are not just residents of this area; they are in some cases our customers and certainly their potential customers. He stated they managed to strike an accommodation with the land owners yesterday, that if they are in a position in which they can receive reasonable assurances that the opposition too this application would be dropped, they are prepared to file an additional application for that location. He stated what he would propose to do assuming that there is a withdrawal of opposition, would be to continue this application until next month, if the Board is willing. He stated they will file a new application at the beginning of next week, an additional application, and he would then request that the Board invert the normal sequence in which these matter would be heard to allow the new application to be heard first and assuming that the opposition is substantially withdrawn and the new application is approved, they would recommend that one of the conditions placed on the approval would be that the currently pending application be withdrawn. He stated he realizes this is at the eleventh hour, what they have done in the last month has not been particularly easy to accomplish, but to the extent that they can accommodate community concerns like this they want to. He stated this is a site that was expressly indicated by the leadership of the association on the recorded record last month would be acceptable and they have worked hard to make that a possibility. He stated he does not know what the best approach is here but he would like to receive some indication from the opponents here tonight regarding whether there would be a withdraw of opposition for this new site, if there isn’t going to be a withdraw of opposition then they need to move forward with this application tonight. He stated if there would be a withdrawal of opposition then the procedural motion he just made here this evening he would reaffirm and seek to continue this case. He stated he is comfortable with what ever approach this Board would take; he does not know if that would be a show of hands or what would be the most appropriate. He stated if they can be assured or some reasonable assurance that this is going to result in the effective elimination of opposition to this site, they are ready to bite the bullet and spend all the necessary money for new geotechnical studies, the whole nine yard, to move the site to this new location.

Attorney Shively stated he is looking strictly at what the Board can do in its role. He stated if Mr. Pike wants to, with permission of the Chair, by show of hands just to see how many people would be satisfied with the new location, and then by that he can determine how he wants to proceed, that would be the petitioners call. He stated he is a little bothered by the terminology that the council has used with regard to assurances. He stated they cannot ask the audience or make them feel like they are waiving a right to remonstrate. He stated if Mr. Pike wants to assess to get a feel to see that they are on the right tract and the Chair allows him to do that, that is fine. He stated but then they will have to assess how the applicant wants to proceed because the Board cannot bind these people.

Attorney Pike stated that was not his intent and if his statement indicated other wise, it was a poor chose of words.

Attorney Shively stated because under Indiana Law there are people not here this evening that still have standing 30 days after what ever they do to challenge. He stated even if everyone signed an agreement that they are for it; there is still the potential of a denial 30 days down the road.

Attorney Pike stated he thinks they are all trying to accomplish the same objective and he is here in the best good faith after some significant effort to make the option possible. He stated so what they need to know is if they make this move is that going to result in a withdrawal of opposition. He stated the easiest way that he can see to accomplish this would be a request for a show of hands.

Attorney Shively stated this Board cannot act as a facilitator, mediator, or arbitrator, all they can do is hear evidence and make a decision. He stated Mr. Pike just wants to get a feel on if the new location is a step in the right direction, it does not bind anyone, and he just wants to know if it is worth their time to file a new petition. He stated if they learn something new, this Board will not prevent anyone from remonstrating next month.

Attorney Pike stated lets assume for sake of argument that this would be a tower approximately 25’ taller and still be unlighted and look very similar to the now proposed one. He stated everything Mr. Shively just stated, as usual, is more concise and more precise than he would have. He then asked for a show of hands from the audience if they do this will it likely satisfy these folks. Several raised their hands.

Attorney Pike stated that being the case he would like to formally make the following procedural motions. He stated he would like to move to continue this existing application to next months regular meeting for consideration in anticipation of filing an additional application next week for a new location that would replace this one if it is approved.

Ms. Phillips stated the filing deadline for the next months meeting was Monday.

Attorney Pike asked if they could extend that deadline because it is a matter of public importance.

Ms. Phillips stated no, that is their advertising deadline and the ad has to be at the paper by tomorrow.

Attorney Pike stated they could have everything needed for the legal advertisement to the office by tomorrow.

Ms. Phillips stated that would be fine.

Attorney Shively stated if they are going to have both applications on the agenda, the new one to be voted on first, with the understanding that if the new one passes, they are going to withdraw the old one.

Attorney Pike stated definitely and he would expect that to be a condition on the approval of the new one, but he does not want to withdraw the old one until he knows the new one has been approved.

The Chairman called for consensus of the Board.

The Board unanimously approved the request made by the applicant.

Attorney Pike stated he is grateful for this Board's flexibly on this issue and especially grateful for the administrative staff’s flexibility on this issue; this is a matter of the public concerns and is grateful for their extra effort.

The Chairman stated they are thankful for considering the neighbors request, because they are here to protect most of their rights or all their rights.

VARIANCES:

BZA-V-04-32 – Applicant: Hal Turner Owners: Hal & JoAnna Turner

Premises – Property location on the W side of N Grand River Rd. approximately 0’ N of the intersection of N Grand River Rd and E Grand River Rd. Ohio Twp. Part Lot 4 in Baert Subdivision.

Nature of Case – Applicant requests a Variance from the requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of an unattached garage not meeting minimum side yard requirements on a corner lot in an “A” Agriculture Zoning District.

Present was Hal Turner.

The Chairman called for a staff report.

Ms. Phillips stated all return receipts from certified mail to the adjacent property owners of notice of this meeting have been submitted. She stated the applicants are requesting a Variance to allow the construction of an unattached garage not meeting side yard requirements on a corner lot. She stated the Comprehensive Zoning Ordinance states that on a corner lot one side has to have a 25’ setback and the other side can have a 15’ setback. She stated the proposed unattached garage is going to be 5’ off the right of way for Grand River Road an encroachment of 10’ on a corner lot. She stated in 1968 the applicants did obtain a Variance approval to build the existing carport/garage attached to the existing house. She stated the applicant states on the application that they want the Variance due to existing driveway and septic system. She then stated the property is approximately.36 acres and is the south 70’ of lot 4 in Baert’s Subdivision. She stated the property to the East is zoned R-1A Single Family Dwelling with a residence, the property to the North, South, and West is zoned Agriculture with several residences and there is no flood plain on the property. She stated they did supply the County Engineer with a copy of the plot plan for him to review the sight distance on a corner lot. She stated they did receive a letter from him. She then read the letter (copy on file).

The Chairman asked if the applicant had anything further to add to the staff report.

Mr. Turner stated no.

The Chairman called for questions by the Board.

Ms. Phillips stated if the Board members would look at Think Map, they can tell where it is going to go because there is an existing slab of concrete already there.

Mr. Willis asked if there is a carport and garage already attached to the existing house.

Mr. Turner stated yes.

Mr. Willis asked what is the purpose of the proposed garage.

Mr. Turner stated his garage is too full and he cannot get a car in it. He stated he may want to put a bathroom in it and maybe build a room in it.

Ms. Phillips stated he cannot go making it a residence and put bedrooms in it.

Mr. Turner stated he was talking about the garage attached to his house.

Ms. Phillips stated okay, that was fine.

Mr. Turner stated he was going to put a boat and a car in the unattached garage.

Mr. Medcalf asked why it had to be so close to the right of way.

Mr. Turner stated because of his septic system, he does not want it too close to it.

Mr. Peninger asked how long the concrete had been there.

Mr. Turner stated over 20 years.

Ms. Phillips stated Mr. Sherwood told her they have no plans on expanding Grand River Road.

Mr. Peninger asked what type of traffic pattern is along Grand River Road.

Mr. Turner stated there are two Grand River Roads, East and North, and there is hardly anyone who uses the East, but they does use the front drive a lot.

There being no further questions by the Board and no remonstrators, the Chairman called for a motion.

Don Mottley made a motion to approve BZA-V-04-32, subject to the following conditions:

1. Subject to the property being in compliance at all times with the applicable zoning ordinance of Warrick County.

2. Subject to all public utility easements and facilities in place.

3. Subject to an Improvement Location Permit being obtained.

4. Subject to any required Building Permit from the Warrick County Building Department.

5. Subject to all rules and regulations of the local Health Department.

6. Subject to all previous conditions place on BZA-68-5’s approval

The motion was seconded by Richard Medcalf and unanimously carried.

BZA-V-04-33 – Applicants & Owners: Gerald & Carla Sprinkle

Premises – Property located on the N side of Vann Rd (S 350) approximately 1380’ W of the intersection formed by Vann Rd. and Martin Rd. (W 650). Ohio Twp. (Complete legal on file.)

Nature of Case – Applicants request a Variance from the requirements as set forth in the Comprehensive Zoning Ordinance in effect for Warrick County, Indiana, to allow the construction of a 64’ x 30’ unattached garage on property with an existing barn and no principle dwelling in an “A” Agriculture Zoning District.

Present was Gerald Sprinkle.

The Chairman called for a staff report.

Ms. Phillips stated all return receipts from certified mail of notice of this meeting have been submitted. She then stated the applicant is requesting a Variance to allow the construction of an unattached accessory building on property with an existing barn and no principle dwelling. She stated the property is approximately 5 acres zoned Agriculture with the surrounding property being zoned the same. She stated there are residences to the East and West and a water tower to the South. She stated the applicant states on application, “I bought this property in 1986 and built a horse barn at that time. Now I would like to build a garage to store my tractor, trailer, cars, etc. in and have a place to work on my equipment in.” She stated there is no Flood Plain. She stated what is in the ordinance is if they have 2.5 acres or more, then they can build an accessory building with no principle dwelling as long as they build the residence with in two years after they get the permit. She stated she does not think Mr. Sprinkle knows when or even if he is going to build a house, so he wants to ask for a permanent variance. She then stated she does not know if the Board should even put a time limit on building a house or not.

Attorney Shively stated he thinks the Board should treat this as a permanent variance. He stated what he means is if the Board puts a time limit and the time comes and goes, he comes back and still have no plans on building a residence, the Board just needs to treat it as a permanent variance and act as those he is never going to build a residence.

Ms. Phillips stated when the horse barn was built the only thing they had to do was sign off that it was going to be used for live stock or crops. She stated now the Area Plan Commission has ruled that they have to bring in a schedule F and prove they are a farmer for a living.

The Chairman asked if the applicant had anything further to add to the staff report.

Mr. Sprinkle stated he did not.

The Chairman called for a questions by the Board.

Mr. Willis asked if there were horses on the property now.

Mr. Sprinkle stated yes.

Mr. Willis asked if this was going to be used to store implements to maintain the property.

Mr. Sprinkle stated yes.

Mr. Peninger asked if he was adding on to the existing barn would he have to get a variance.

Ms. Phillips stated yes, because he would be improving and would no longer be non-conforming.

There being no other questions by the Board and no remonstrators, the Chairman called for a motion.

John Peninger made a motion to approve BZA-V-04-33, subject to the following conditions:

1. Subject to an Improvement Location Permit being obtained.

2. Any required Building permit from the Warrick County Building Department must be obtained.

3. Subject to the property being in compliance at all times with the applicable zoning ordinance of Warrick County.

4. Subject to all public utility easements and facilities in place

The motion was seconded by Don Mottley and unanimously carried.

OTHER BUSINESS:

Mr. Mottley asked when would the Commissioners be looking at the Comprehensive Zoning Ordinance.

Ms. Phillips stated they continued it until the November 10^th meeting and they have until December sometime. She stated if they do not act on in by that time, it will be approved because the Area Plan Commission recommended to approve it. She then asked, Attorney Shively if that was right.

Attorney Shively stated he would check on that.

ATTORNEY BUSINESS:

Attorney Shively stated Monte Williams filed suit on them, but it is too late and will be dismissed. He stated he only had 30 days to file and he also included the County Council but he cannot figure that out.

Mr. Willis asked if they could get their attorney fees out of him.

Attorney Shively stated it depends on how much they want to press. He stated it is a frivolous suite and can be discuss at another meeting. He stated it is completely untimely and the wrong pleading.

EXECUTIVE DIRECTOR BUSINESS: None

Being no other business the meeting adjourned at 6:45 P.M.

Larry Willis, Chairman

ATTEST:

The undersigned Secretary of the Warrick County Area Board of Zoning Appeals does hereby certify the above and foregoing is a full and complete record of the Minutes of said Board at their monthly meeting held Oct 27, 2004.

Sherri Phillips, Executive Director & Secretary